Occupier can claim adverse possession as against real owner.

1. This Second Appeal is directed against the judgment of the learned District Judge, Madurai North at Dindigul, in A.S.No.165 of 1983 reversing the judgment of the learned District Munsif, Dindigul, in O.S.No.222 of 1980. The plaintiff in the suit is the appellant in the above Second Appeal.

2. According to the plaintiff, the suit property is comprised in Survey No.148/3 in Adiyanoothu village. The entire extent was 1 acre and 65 cents. Originally it was owned by one Kitheri Ammal and by a series of sales the plaintiff purchased the property in the year 1972 from one Pitchamuthu Servai. He was in possession of the entire extent doing personal cultivation and the suit property was shown in the plain plan as A to J. The defendant owns the property north of the plaintiffs property and the same was comprised in Survey No.148/1B. Taking advantage of the fact that the plaintiff was an absentee landlord, the defendant in the course of one year had slowly encroached upon the plaintiffs property to an extent of 18 cents. He had shifted the ridge separating the properties to south and it was known to the plaintiff only two or three months prior to the filing of the suit. The plaintiff thereupon applied to the Tahsildar for measuring the property and accordingly, the Taluk Surveyor measured the property and found that a portion of the plaintiffs property had been encroached by the defendant. Though the defendant agreed to vacate the encroached portion he was refusing to hand over possession of encroached portion of 18 cents.

3. In the written statement filed by the defendant it was contended that the ridge separating his property and that of the plaintiffs property was in its present form for the past several years. The land north of the ridge was originally owned by one Rayar Servai and by a series of sales, the defendants father and uncle had purchased the property in 1943. In 1954, the defendants father purchased the share of the defendants uncle and became a full owner. After his death in 1970, the defendant was in absolute possession of the property and therefore, the defendant and his predecessors in interest have been in continuous possession of the property of the entire extent north of the ridge and hence perfected title by adverse possession to the knowledge of the plaintiff and his predecessors in interest. Therefore, the plaintiff has no title or possession over the suit property and he had not asserted title to the disputed portion.

4. The trial court held that the defendant had admitted the plaintiffs title in the written statement and therefore, it was not open to the defendant or his witnesses to back from the recitals in the documents. As regards the claim of adverse possession by the defendant, it was held that the trespass could not have been before 1974 and since the suit had been filed in the year 1980 itself, the said plea cannot be upheld. The appellate court however, held that the evidence clearly established that the defendant was in possession of the disputed portion even long prior to the purchase by the plaintiff in the year 1972. With the result, claim of adverse possession by the defendant was upheld and the decree granted by the trial court was set aside. Hence, the present Second Appeal.

5. Mr.V.Natarajan, learned counsel for the appellant very strenuously contended by referring to several rulings holding that animus of adverse possession as against the real owner was the most essential ingredient to prove the title by adverse possession. In the present case, the plea of adverse possession by the defendant, was nothing more than a possession by mistake and such possession cannot justify a claim for title. He would also contend that the judgment of Ramanujam, J. in Pavadai alias Selvaraj Chettiar v. Chinnadurai Padayachi, 93 L.W. 278 relied upon by the appellate court, holding that animus against and knowledge about the real owner was not always necessary and that open and continuous assertio